Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZPM v NSW Trustee and Guardian [2020] NSWCATAP 134 Hearing dates: 24 June 2020 Date of orders: 24 June 2020 Decision date: 09 July 2020 Jurisdiction: Appeal Panel Before: Boland J AM ADCJ, Deputy President M D Schyvens, Deputy President Dr M Spencer, General Member (Community) Decision: (1) The Application for a Stay dated 23 April 2020 is dismissed. (2) The Notice of Appeal dated 23 April 2020 is dismissed. Catchwords: APPEAL – where purported appellant has no knowledge of filing of an appeal or an application for a stay Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 55(1)(b), 81(1)(a) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: ZPM (Appellant) NSW Trustee and Guardian (First Respondent) ZPN (Second Respondent) Representation: Solicitors: Appellant (Self Represented) NSW Trustee and Guardian (First Respondent) Second Respondent (No Appearance) File Number(s): AP 20/18946 Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them, or is likely to lead to their identification, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Not applicable Date of Decision: 27 March 2020 Before: B M Shipp, Senior Member (Legal) Dr K Eggleton Senior Member (Professional) K Laurence, General Member (Community) File Number(s): 2020/00038973 REASONS FOR DECISION Introduction 1. Mr ZPM is a 93-year-old gentleman who lives in an aged care facility in the southern suburbs of Sydney. On 27 March 2020 the Guardianship Division of the Tribunal heard an application brought by the Director of Nursing and General Manager of the aged care facility to appoint a financial manager to manage Mr ZPM's financial affairs. At the same time, the Tribunal below heard an application by Mr ZPN that he be appointed as financial manager of Mr ZPM's estate. Mr ZPN is one of Mr ZPM's sons. 2. On 27 March 2020 the Tribunal below heard and determined the financial management applications and appointed the NSW Trustee and Guardian as Mr ZPM's financial manager. This occurred in circumstances where Mr ZPN's application was opposed by Mrs ZPM and Mr ZPN's brother. 3. Two documents were subsequently filed in the appeal registry of the Tribunal on 23 April 2020. The first application is an "Application for stay of original decision pending appeal". The parties to that application are listed as Mr ZPM and "NCAT". The application bears a signature next to the heading "Applicant's/Appellant's signature or signature of legal representative". No signature appears in the box for a signature immediately below Mr ZPM's name. 4. The second document filed with the Tribunal is a Notice of Appeal. That document (as is the Stay Application) is a typed document. The appellant's name is shown as Mr ZPM and the postal address given is that of Mr ZPM's son, Mr ZPN. The email address on the form is also the email used by Mr ZPN as is the mobile telephone number. Under the heading "Representative details" Mr ZPN gives his name, identical address, email address and mobile telephone number. 5. The appeal was the subject of two directions hearings. At the first directions hearing the appeal was listed for a call-over and a hearing of the Application for a Stay on 7 May 2020. The appellant was directed to file and serve by email any evidence and submissions in support of the Stay Application by 4 May 2020. The respondent was directed to file and serve by email any evidence and submissions in opposition to the Stay Application. 6. On 7 May 2020 directions were made to enable the appeal to be heard. However, it appears at that date the Tribunal's reasons for decision had not been published. Those reasons, which appears were published 27 May 2020, reveal the parties to the proceedings were the applicant (Director of Nursing of the aged care facility), Mr ZPN, and Mr ZPM's wife as well as the NSW Trustee and Guardian (as a statutory party). However, as we established on hearing of the appeal, the Director of Nursing was not joined as a respondent to the appeal, nor was he served with a copy of the Notice of Appeal or any submissions in support of the appeal. Mr ZPM's wife was not recorded as a respondent to the appeal. We infer that she had no knowledge of the appeal. 7. Submissions in support of the appeal (undated) in a typed format headed "Statement by [Mr ZDM] to the NCAT Appeals Team" were emailed to the registry from Mr ZPN's email on 4 May 2020. The document is signed above Mr ZPM's name. It is not clear whether or not the signature is an electronic signature. The appeal hearing 1. Due to the COVID-19 pandemic the appeal was conducted by telephone. 2. Mr ZPM, who has a hearing impairment, was able to participate by speaker telephone. Present with him was the aged care facility general manager. 3. On 17 June 2020 the Tribunal received an email from Mr ZPN in which he said: Please note; I am withdrawing my support & attendance to this appeal. Thank You 1. Mr Michael Keogh from the NSW Trustee and Guardian participated in the appeal and provided some helpful updating background information to us. This included advice that NSW Police have recently obtained an Apprehended Violence Order (AVO) which prohibits Mr ZPN from contacting Mr ZPM. The order is effective until 2022. As will be apparent later in these reasons, we received that information because it became clear to us from Mr ZPM's evidence that he had no knowledge of the Application for a Stay or the Notice of Appeal. 2. We note Mr ZPM was found by the Tribunal to lack the capacity to independently manage his financial affairs although "he was able to provide general information about his assets but he could not clearly indicate how an Enduring Power of Attorney works, including what powers were available to the appointed attorney". The Tribunal found that Mr ZPM's ability to manage his financial affairs was "not assisted by the family conflict, and suggestions of actions taken for personal gain, which increases the potential for undue influence". We pause to note that the Tribunal's reasons clearly set out the conflict between Mr ZPN on the one hand and Mrs ZPM and Mr ZPN's brother on the other. However, the Tribunal accepted the evidence of two psychiatrists that Mr ZPM was able to make his own lifestyle decisions, but that he had a mild cognitive impairment. 3. Mr ZPM told us he had no knowledge of the Stay Application or the Appeal. He did not seek to prosecute an Appeal. Mr ZPM provided this information after the order challenged and the grounds of appeal as set out in the Notice of Appeal were read to him. We were satisfied that he understood the questions we posed to him. Consideration 1. We were satisfied that Mr ZPM did not prepare or instruct Mr ZPN to prepare on his behalf an Application for a Stay or a Notice of Appeal. We were satisfied he did not wish to prosecute a stay pending hearing of the appeal or an appeal. We draw the inference from the address and other details disclosed on these documents and the language employed in the submissions in support of the appeal that they were prepared and lodged by Mr ZPN. We are further fortified in that view by Mr ZPN's communication of 17 June 2020 and the knowledge of the AVO. In these circumstances we conclude that the appeal is a nullity and should be dismissed under s 81(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) and that the Stay Application should be dismissed under s 55(1)(b) of that Act as lacking in substance. ORDERS 1. The Application for a Stay dated 23 April 2020 is dismissed. 2. The Notice of Appeal dated 23 April 2020 is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2020